“Where an individual is suffering from mental disorder or mental incapacity, others may sometimes have the right to take decisions for them, but this should always depend upon there being a proper legal justification: it should not happen simply because others think that they know best.”
Evaluate critically the current mechanisms and provisions and the proposals for reform in respect of proxy decision-making on behalf of incapacitated adults.
It is fundamental that this paper reflects the law as it now stands under the new Mental Capacity Act 2005 so as to ascertain whether there are adequate legal justifications for the use of proxies. However, in order to fully understand the rationale for reform, recourse must be had to the old law of the Mental Health Act 1983.
As the other half of legal authority on the matter, the common law justifications for the use of proxies will also be critically evaluated. On account of the very recent reform, the best method for coverage of the statutory source of law on this matter is an examination of the old law of the 1983 Act alongside the common law headings with comparison to the 2005 Act. These headings will be doctrines of law used in terms of the decision to use proxies and their obligations in relation to acting on behalf of the incapacitated individual who is suffering from a mental disorder or incapacity. Each part of this paper will therefore critically evaluate the headings and underlying legal justification for the Legal Test for Capacity, doctrines in place for decision making methods once a proxy is in place and the jurisdiction of the court in terms of the property and affairs of the patient.
A.The starting point – the legal presumption of capacity
Under the common law, there is a presumption of capacity for all individuals over the age of 16, which remains applicable to those suffering from a mental disorder until incapacity is proven. Lord Donaldson stated in Re T (Adult: Refusal of Treatment):
“Every adult has the right and capacity to decide whether or not he will accept medical treatment, even if a refusal may risk permanent injury to his health or even to premature death…it matters not whether the reasons for the refusal were rational or irrational, unknown or even non-existent.”
Capacity is therefore not a concept that is evaluated on the basis of the presence of an illness but is strictly determined on the basis of whether or not the patient is able to make a decision in relation to a specific issue.
B.The types of tests to determine incapacity
Bartlett accurately described the types of tests under the old regimes to determine incapacity and are; Status of the Patient, Evidencing a Choice, Reasonable Outcome of Choice, Ability to Understand and Appreciation of Information. These will be examined and critically evaluated with analysis of the new 2005 for comparative purposes.
1The Status of the Patient
The Status of the patient from the MHA 1983 has now been repealed by the 2005 Act in which the common law presumption is now statutorily upheld. S 1(2) of the 2005 Act now states:
“A person must be assumed to have capacity unless it is established that he lacks capacity.”
(b)The old regime for Status
Status came into play as only detained mental health patients fell under this act and this effectively grouped certain people together under one jurisdiction. Under the Act, for certain types of medical treatments that fell under s 63 of the MHA 1983, in which the patient was within the first three months of treatment, no consent was required. Patients under the jurisdiction of the Act could also have their consent overridden where treatment falling under s 57 of the Act was denied by the required second opinion. An override also operated for less serious procedures under s 58, whereby the RMO required to certify that the patient was capable of consenting to treatment. If he did not certify, the consent was rendered invalid. The whole statute was therefore geared, not towards a presumption of capacity, but towards a presumption in favour of treatment and an exemption to the common law rule of presumption of capacity. This highly restrictive regime cannot, in this Human Rights era, be viewed upon as a body of proper legal justifications for the use of a proxy.
(c)The journey to reform
In a move for reform of the above law, the Law Commission categorically rejected any notion of future retention of a status based rule. The reason for this was that patients suffering from mental conditions have varied ability to cope with decisions on various factors and categorisation is an unnecessarily and blanket removal of autonomy.
The proposals of the Law Commission in 1995 were set out in a draft bill that was based on three key principles. The first was that people require to be enabled and encouraged to make their own decisions as far as they are able. Secondly, any intervention on such autonomy has to be limited and should always be concerned with making a decision based on what the person himself would have decided. Thirdly, adequate safeguards required to be put in place in order to prevent exploitation and neglect and abuse of physical, sexual and psychological nature. These proposals now form part of the new Mental Capacity Act 2005 and constitute proper legal justifications.
(b).Evidencing a Choice
(i)The New Law
This is the ability to communicate an intention, which falls under s 2 of the 2005 Act as this is the provision that stipulates the definition of people who lack capacity. These are all persons who are unable to make a decision due to impairment or disturbance in the functioning of the brain. As stated above, the common law premise for the assessment based on the ability to decide on the issue at hand is now part of the statutory framework, thereby rendering irrelevant the actual permanent or temporary nature of the impairment.
The modern definition of incapacity is completely external to any consideration of ability to communicate, which means that old concerns that this criteria, as a test that would also catch those merely communicatively and not mentally impaired, is no longer an issue. The problem of the old law is illustrated below.
(ii)The Common Law
This was an unusual criterion due to the notion that impairment may only have been physical. In the past, cases in this field related to the concept of evidencing a real choice to refuse treatment. This occurred in two cases. In Re MB (Medical Treatment) the patient refused treatment due to a phobia of hypodermic needles. In Re T (Adult: Refusal of Treatment), a Jehovahs witness refused a blood transfusion following a caesarean section, for the benefit of the unborn child. In both cases it was held that the, ‘choice’ of the patients was not evident as ‘real.’ The rationale for this trend of decisions was addressed by the Law Commission as stated below.
(c).Reasonable Outcome of Choice
In 1995 the law Commission homed in on the obvious trend that physicians were only content to adhere to the wish of patients where consent to treatment was given but were deeming the patients incapacitated where they did not consent. A different standard on the basis of the decision reached was, again, a stance that greatly placed medical opinion over that of the autonomy of the patient. However Bartlett phrases the dilemma correctly by stating that capacity ought to have a higher standard where the decision appeared to be irrational.
This is unresolved by the new 2005 Act as this does not encompass patients with mental illness as did the old MHA 1983, but refers to all incapacitated individuals. Under the new law, the patients of both the above cases are not incapacitated. This issue is therefore particularly alarming for such borderline cases concerning sufferers from Body Dysmorphic Disorders who could gain autonomy
(d).Ability to Understand and Appreciation of Information
(i)The New Law
The Law Commission of 1995 proposed what is now s 3 of the 2005 Act concerning the inability to make a decision, which has three criteria. The first is, if he is unable to understand the information relevant to the decision, secondly, if he is unable to retain that information, thirdly, to use or weigh that information as part of the process of making the decision or to communicate his decision.
(ii)Under the 1983 Act
There was a similar mechanism in place for s 57(2)(a) and s 58(2)(a) and (b) of the 1983 Act, where the patient had to be capable of understanding the nature, purpose and likely effects of treatment. A difference with the new law is that the old law was that of subjective, express permission to consent and meant that ‘capable of understanding’ was specific to stated types of treatment. A similarity with the new law is that the question rests in the ability to understand the question at issue, such as the question of proposed treatment as opposed to an actual understanding.
(iii)The Common Law
The larger part of the origins of the new law stems mostly from the common law position on the appreciation of information. The leading case on this matter was Re C (Adult: Refusal of Medical Treatment) where Thorpe J devised three stages for the ascertainment of capacity, which were, firstly, comprehending and retaining treatment information, secondly, believing the information and thirdly, weighing the information in the balance to arrive at a choice. This filled the gap of recourse for individuals outside the 1983 Act but it is now fully ratified by statute. The new law is therefore a liberation for 1983 Act patients as autonomy is at last capacity and not status based.
As for other forms of capacity, such as testimony, the courts stated in the case of Banks v Goodfellow that the testator understand, “the nature of the act and its effects,” as well as, “to comprehend and appreciate the claims to which he ought to give effect.” Therefore, the testator would have to understand the full legal implication of a will. This came into question in Re Beaney where a donor pledged her entire estate to one daughter but she did not fully comprehend the fact that she would deny her other children a share in the inheritance.
The common law will act as a guide to interpretation in the implementation of the 2005 Act and therefore, older case law will remain useful.
B.Making the decision
1.The 2005 Act
Once incapacity has been established, it is then essential to legally justify the method for determination of the decision. The old common law concept of best interests now falls under s 4 of the 2005 Act and is discussed below.
This is part of the approach adopted for the MHA 1983 for decisions of proxies in relation to the property and financial affairs of the patients. Under the common law in Re W(EEM) the court concluded, on the question of whether to commence divorce proceedings for W:
“The first question which arose on these sections was the scope of the word “benefit”. It seems clear to me that it is not restricted to material benefit, but that it is of wide significance comprehending whatever would be beneficial in any respect, material or otherwise…”
The court based its decision on the sanctity of marriage, the religious views of W, the effect on the children and legal changes to divorce proceedings. Other cases on the ‘best interests’ concept have tended to be related to areas concerning specific medical procedures including sterilization of the handicapped and ‘pulling the plug’ on individuals on life support.
The Law Commission, decided that these narrow features of case law would be best served as part of a statute and now ‘best interest’ is codified with an added intelligent twist of marrying the concept with the concept of advance directives whereby the 2005 Act has provision for consideration of the person’s past and present wishes. This notion is the creation of binding decisions of the patient that took place while they still had capacity and they are regulated under the Enduring Powers of Attorney Act 1985 but only in terms of who is to manage the estate in the event of incapacity.
Thorpe J expanded on this concept in C (Adult: Refusal of Medical Treatment) by extending it to situations involving medical treatment. Although this seemed highly liberal from the point of view that no formalities would be required other than proof of a prior statement refusing treatment, the whole point was purely hypothetical in this case where the patient recovered.
It is highly logical that this concept now forms part of the obligations associated with decisions made by proxies under the 2005 Act.
Here decisions are made as they would have been by the incapacitated person, but for their incapacity. This concept still forms part of the common law in guidelines set out by Sir Robert Megarry V-C in D (J)(Court of Protection) but it was not utilised in the new 2005 Act. The reason for this is clear given that it is not a true attempt to ascertain the actual wishes of the incapacitated individual. In C (A Patient) the clear and rational reasoning of Hoffman J in acknowledging that C would never have been capable of testimony, thereby rendering substitute judgement unjust. To illustrate, Hoffman J stated:
“In all relevant respects, the record of her individual preferences and personality are a blank on which nothing has been written. Accordingly, there is no material on which to construct a subjective assessment of what the patient would have wanted to do…”
In this circumstance the court held that D would have been a normal, decent person but this is a last resort decision that is based on objective consideration as opposed to the incapacitated individual. It can therefore be said that a further reason for the non-codification of this doctrine is that s 4 of the 2005 Act commands for all that is humanly possible to be carried out in order to ascertain the wishes of the individual and then to act in their best interests. Substitute judgement would have therefore been a superfluous addition to the new statutory regime.
C.The jurisdiction of the Court, property and affairs
1.The new regime and the 1983 Act
The powers of the court in relation to property and affairs fall under s 18 of the 2005 Act and incorporate powers relating to the control and management, relinquishment of title, acquisition, the carrying on of business and other items relating to all property and relevant affairs. This is largely the same as the old regime under s 96(1) of the 1983 Act. The main difference is that there is no need to state that such powers only exist where the patient is incapable of managing the property and affairs themselves. As stated above, this is because the 1983 Act grouped individuals together in accordance with status as detained mental health patients. This is not the case for the 2005 Act whereby individuals fall under it on account of incapacity relating to a specific issue. S 18 therefore kicks in automatically where incapacity is declared.
Where the Act does not apply, the common law managed to confuse itself and this is illustrated in the case of S (Hospital Patient: Court’s Jurisdiction) where a Norwegian artist was incapacitated by a stroke and a dispute arose as to whether the Norwegian wife or the Common Law spouse in the UK was to determine who was to make his decisions for him and ultimately, where he would reside.
The Bingham M.R. held that the Common Law spouse had assumed a contractual responsibility out of necessity which equalled the sort of powers usually heralded by the Court of Protection, which meant that as soon as they were appointed, the powers under necessity would cease. In addition to this, the ruling also meant that the contractual proxy of necessity had powers that would be wider than the Court, namely, the ability to make personal decisions as well as manage the property and affairs, which is ridiculous.
This concept is now no longer an issue as the statutory provisions that were once restricted to patients under the 1983 Act are now applicable to all incapacitated individuals in accordance with s 18 of the 2005 Act, thereby rendering unnecessary the practice of establishing a proxy by contractual necessity.
The new 2005 regime is a profound improvement upon that of the old common law/1983 Act mix. It is clear that the 1983 Act was fundamentally flawed for two main reasons. The first is that it only applied to a narrow group of patients, thereby forcing the common law to develop doctrine that would regulate all other incapacitated people. While this resulted in some triumphs, such as the three part process for the ascertainment of appreciation of the information, there were also spectacular failures such as the contractual necessity for the management of affairs of those who did not fall under the 1983 Act. In any case, the separation of these groups was a mere technicality that also resulted in a stark removal of liberties for the group bundled under the 1983 Act, which was far from in keeping with Article 10 of the ECHR. This was on account of a complete lack of presumption of capacity as well as a possibility for override. Such a system that breaches fundamental Human Rights was outdated to the point that the legal justification could no longer be deemed as proper.
The common law does of course remain in force and there is no doubt that previous case law will aid in the interpretation of the 2005 Act, but this is hardly surprising given that the original 1995 Bill by the Law Commission was inspired mostly by the Common Law regimes. It is therefore clear, by virtue of codification into the new 2005 Act, that the Common Law, despite some imperfections, constituted a good regime for the ascertainment of proper legal justifications for the use of proxies.
The only downside to the new 2005 Act is that there appears to be no regime to counteract claims for autonomy over procedures that would satisfy individuals suffering from Body Dysmorphic Disorders. However, while the new 2005 Act remains in infancy, its true quality remains as pure speculation.
Statutes and Statutory Provisions
Court of Protection Rules 1994 (SI 1994/3046)
Court of Protection Rules 2001 (SI 2001/824)
Enduring Powers of Attorney Act 1985
Mental Capacity Act 2005
Mental Health Act 1983
Airedale NHS Trust v Bland  AC 789
AK (Medical Treatment: Consent) Re  1 FLR 129
B v Croydon Health Authority (1994) 22 BMLR 13;  1 All ER 683
B (Consent to Treatment: Capacity) Re  EWHC 429;  2 All ER 449;  1 FLR 1090
Banks v Goodfellow (1870) LR 5 QB 549
Beaney, Re  1 WLR 770;  2 All ER 595
C (A Patient) Re  3 All ER 866
C (Adult: Refusal of Medical Treatment) Re  1 All ER 819;  1 WLR 290
DJ (Court of Protection) Re  Ch 237;  2 WLR 373;  2 All ER 37
F (Mental Patient: Sterilisation) Re  2 AC 1
MB (Medical Treatment) Re  2 FLR 426
R v Mental Health Act Commission ex p X (1988) 9 BMLR 77
S (Hospital Patient: Court’s Jurisdiction) Re  3 All ER 290
St George’s Healthcare NHS Trust v S  3 All ER 673
T (Consent to Treatment) (Adult Patient) Re  3 WLR 782;  4 All ER 469
Tameside and Glossop Acute Services Trust v CH  1 FLR 762
W (EEM) Re  Ch 123
Bartlett, P., The Consequences of Incapacity (1997) 4 Web Journal of Current Legal Issues
British Medical Association and Law Society, Assessment of Mental Capacity: Guidance for Doctors and Lawyers (1995) British Medical Association
J Peay, “Decisions and Dilemas, Working with Mental Health Law” (Hart Publishing, 2003)
B Dolan & D Powell, “The Mental Health Act explained,” (The Point of Law, The London Stationary Office, 2000)
R Jones, “Mental Health Act Manual,” (Sweet & Maxwell, 8th edition, 2003)
Carson, D., Disabling Process: The Law Commission’s Proposals on Mentally Incapacitated Adults’ Decision-making  Journal of Social Welfare and Family Law 304
Craig, S., Legislation Update (2005) The Times, Public Agenda, 26 April 2005, p.7
Department of Health, Reforming the Mental Health Act (2000) Cm 5016, HMSO
Fennell, P., Inscribing Paternalism in the Law: Consent to Treatment and Mental Disorder (1990) 17 Journal of Law and Society 29
Fennell, P., Statutory Authority to Treat, Relatives and Treatment Proxies (1994) 2 Medical Law Review 30
Fennell, P., The Law Commission Proposals on Mental Incapacity  Family Law 420
Freeman, M., Deciding for the Intellectually Impaired (1994) 2 Medical Law Review 77
Gunn, M., The Meaning of Incapacity (1994) 2 Medical Law Review 8
Gunn, M., Mental Incapacity – the Law Commission’s Report  Child and Family Law Quarterly 209
Parkin, A., Where Now on Mental Incapacity? (1995) 2 Web Journal of Current Legal Issues
Suto, W., Clare, C. & Holland, A., Substitute Financial Decision-making in England and Wales: a Study of the Court of Protection (2002) 21(4) Journal of Social Welfare and Family Law 37
Wilson, P., The Law Commission’s Report on Mental Incapacity: Medically Vulnerable Adults or Politically Vulnerable Law? (1996) 4 Medical Law Review 227
Law Commission, Mental Incapacity, Report No 231 (1995) HMSO
Lord Chancellor’s Department, Who Decides? Making Decisions on Behalf of Mentally Incapacitated Adults (1997) Cm 3803, HMSO
Lord Chancellor’s Department, Making Decisions: The Government’s Proposals for Making Decisions on Behalf of Mentally Incapacitated Adults (1999) Cm 4465, HMSO
Department of Health, Draft Mental Health Bill (2002) Cm 5538, HMSO
 For more information on other types of Body Dysmorphic Disorders and Obsessive Compulsive Disorders (OCD) see the OCD Centre of Los Angeles webiste: http://www.ocdla.com/index.html
 (whether by talking, using sign language or any other means) 2005 Act s 3(1)(d). Note s 3(2) that is mentioned above and relates to the use of any kind of form of communication that would be helpful, if successful, means that the patient has capacity.
 This was followed in C(Tameside and Glossop Acute Services Trust v CH  1 FLR 426 and B v Croydon District Health Authority (1994) 22 BMLR 13. Tameside was sited in Re MB Medical Treatment (ibid) at 437
 1983 Act s 94(2). But the court of protection must be satisfied that these criteria have been met, see rule 9(1) of Court of Protection Rules 1994. The court also has powers of short process intervention under rule 8 of the 2001 Rules