We are all bankers now

Before long, significant changes will have been made to the law that covers children and many incapable or vulnerable adults. It is still unclear, however, what those changes will mean.

Yet the law must always be clear. The European Court of Human Rights (ECtHR) said as much in 2004: “An important ingredient of lawfulness is that all law must be sufficiently precise to allow the citizen – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action might entail.” (HL v United Kingdom) In fact, this principle goes back much further; at least to Sunday Times v United Kingdom in 1979 and possibly to the ancient Chinese Fa legalism of the eighth to third centuries BCE.

Hello DoLS

The HL case was about the common law doctrine of necessity and whether it was sufficiently clear to permit incapable people to be deprived of liberty in their own best interests. The ECtHR said it was not and that as a result, it breached Article 5(1) of the ECHR.

The Government’s response was to introduce the Deprivation of Liberty Safeguards (DoLS), which will apply wherever an incapable person is in a NHS hospital or premises registered under the Care Standards Act. For such a person to be deprived of liberty, permission will have to be obtained, either from a PCT or a local authority. If the Court of Protection is to be involved in the case, it will be subsequently, as an appellate court.

One problem with the DoLS is that even now, some time after they came into effect, no one really knows what it means to be deprived of liberty. And it seems that the best guidance is as likely to be found in anti-terrorism cases as in those decided under health care law. (See: David Hewitt, New perspectives on the Mental Health Act, Solicitors Journal, 18 November 2008) Practitioners – and patients – surely deserve better than that.

Another problem is the attitude of the House of Lords, which recently held that in deciding whether something constitutes a deprivation of liberty, consideration may be given to the purpose it seeks to achieve. (Austin v Metropolitan Police Commissioner, 2009) Their Lordships drew on HM v Switzerland (2002), in which the ECtHR held that where an elderly woman was admitted to a nursing home, Article 5 of the ECHR would not be engaged, because this was a “responsible measure” taken in her own best interests and could not, therefore, amount to a deprivation of liberty. The decision in HM had long been considered a rogue one, and In HL, a differently-constituted ECtHR took pains to distinguish it. Now, however, its spectre has returned, and in a way that might haunt the DoLS. (See: David Hewitt, Whose liberty? Solicitors Journal, 13 February 2009)

Under the DoLS, a deprivation of liberty will only be permitted – and will only, therefore, be lawful – if it is in the best interests of the incapable person concerned. But Austin suggests that a measure will never be a deprivation of liberty where it has a benevolent purpose. If that were so, no patient who appeared to fall within the DoLS would ever be deprived of liberty, and as a result, permission would be unnecessary where the DoLS appeared to demand it most. No formal comment has been made about the effect of Austin, but the Department of Health has let it be known that as far as the DoLS are concerned, it is business as usual.

No secrets

There is a widespread view – even unanimity, perhaps – that we should strive to protect vulnerable people. The problem is that no one can seem to agree on what ‘vulnerable’ means. (See: David Hewitt, What is vulnerable? Solicitors Journal, 14 April 2009)

The word is used in the No secrets guidance, which was published in 2000 and is the centrepiece of the adult protection framework. The guidance is, however, being revised, and there is no guarantee that vulnerability will continue to have the resonance it does now. And the ‘No secrets’ definition is not the only one to hand: the Youth Justice and Criminal Evidence Act 1999, the Care Standards Act 2000 and the Safeguarding Vulnerable Groups Act 2006 all have to do with the vulnerable, but each of them defines the term differently.

The High Court, meanwhile has said that it too will offer a remedy to the vulnerable. (Re SA: vulnerable adult with capacity: marriage, 2006) The Court’s motive might be to create new work streams, given that it has lost much if not all of its jurisdiction over incapable people to the Court of Protection. Its conception of what it means to be vulnerable is certainly the broadest of them all.

Parental consent

Hitherto, someone with parental responsibility has been able to consent to medical treatment for a child, even where the child himself or herself is capable of giving consent, and even where he or she has refused to do so. Now, however, we are told that sometimes, it will not be sufficient to rely upon parental consent. (See: David Hewitt, Too young to decide, Solicitors Journal, 30 September 2008)

This notion is set out for the first time in the revised Code of Practice to the Mental Health Act 1983, where it is said to derive from Nielsen v Denmark (1989). The Code says: “It is difficult to have clear rules about what may fall in the zone, when so much depends on the particular facts of each case … The parameters of the zone will vary from one case to the next: they are determined not only by social norms, but also by the circumstances and dynamics of a specific parent and child or young person.” (Paragraphs 36.9 and 36.12) Furthermore, “Where there is doubt professionals should take legal advice so that account may be taken of the most recent case law.” (Paragraph 36.9)

According to the Code, the factors that should be taken into account include: the nature and invasiveness of the treatment; whether the child is resisting; any conflict between the child and the parent, or between the parents; any discrepancy between the child’s and the parents’ interests; and the mental capacity of one or other parent.

But another factor, which might itself render unreliable consent obtained from a parent, is “The general social standards in force at the time concerning the sorts of decisions it is acceptable for parents to make – anything that goes beyond the kind of decisions parents routinely make will be more suspect.” (Paragraph 36.12) And the Code reminds us that a decision might be beyond a parent to make simply because of the nature of the proposed treatment – for example, where it could be considered “particularly invasive or controversial” (Paragraph 36.14) But does this guidance clarify or simply obscure the position?

What, for example, are the general social standards in force at the time concerning the sorts of decisions it is acceptable for parents to make; and how should we go about identifying them? Are practitioners expected to take the Guardian and the Daily Mail, and to watch both Newsnight and Jeremy Kyle? And is a code of practice really the right place for such a far-reaching proclamation? If parental consent is no longer to be a sound basis for medical treatment given to a child, why doesn’t the Government say so explicitly, in legislation?

In cases of doubt, professionals are advised to take legal advice, “so that account may be taken of the most recent case law.” This is because the Government no longer regards the Nielsen decision as reliable. The most recent case law, however, supports Nielsen: the decision was another of the golden oldies revived by the House of Lords in Austin. Does that mean, therefore, that on the basis of the Code of Practice, parental consent is still sovereign after all?

And finally: is a decision about cancer surgery really – and by reason only of its magnitude – beyond the remit of a child’s parent? If it is, can we say with any degree of certainty that such a state-of-affairs is itself consistent with the general social standards concerning the sorts of decisions it is acceptable for parents to make?

Comment

These changes are worryingly vague, both in their implications and in their own terms. But if each change is taken at face value, it produces some results that are startlingly clear.

If, ultimately, a judge is to decide whether a child can have medical treatment, a vulnerable adult be protected or incapable person deprived of liberty, a great measure of professional discretion will have to be surrendered. And if the judge that makes such decisions sits in the Court of Protection or the Family Division, and not the High Court, his or her remit will be wider and the yardstick will be merits, not reasonableness.

This will change the practice across wide areas of health and welfare law, so that the judge ceases to be a simple reviewer of public decisions and becomes instead a primary decision-maker. It would be understandable if, in these times of travail, there were to be a loss of faith in professionals. But it’s still a bit of shock to realise that as far as the government is concerned, we are all bankers now.

Will the High Court help safeguard vulnerable adults?

Although the Mental Capacity Act 2005 (MCA) can be used to protect people who are vulnerable because they lack capacity to make a decision, it offers no protection to people who, though undoubtedly vulnerable, still retain their capacity. Such people will not find themselves within the embrace of the new Court of Protection, but a recent case suggests that the High Court might now be willing to step into the breach.

The relatively revent case of The City of Sunderland v PS & CA [2007] EWHC (Fam) 623 concerned an 82-year-old woman and whether the ‘inherent jurisdiction’ of the High Court could be used to move her into residential care against her daughter’s wishes. The inherent jurisdiction has long been used by the High Court to (as it sees it) protect incapable people from harm. It is what has enabled the court to declare that it would be lawful for an incapable person to undergo a medical procedure or be prevented from seeing a relative. (See, for example: In re F (Mental Patient: Sterilisation) [1990] 2 AC 1; Re MB (Medical Treatment) [1997] 2 FLR 426; In re F (Adult: Court’s Jurisdiction) [2000] 1 Fam 38.)

The PS case came before the Honourable Mr Justice Munby, who has considerable experience of cases involving incapable people. For present purposes, there were three significant aspects of his judgment. First, Munby J confirmed the inherent jurisdiction of the High Court. Quoting from one of his own earlier judgments, he said: “It is now clear … that the [High] Court exercises what is, in substance and reality, a jurisdiction in relation to incompetent adults which is for all practical purposes indistinguishable from its well-established … jurisdictions in relation to children. The court exercises a ‘protective jurisdiction’ in relation to vulnerable adults just as it does in relation to wards of court. [The] court can regulate everything that conduces to the incompetent adult’s welfare and happiness” (at [13]; emphasis added). (See, for example: Re SA (Vulnerable Adult with Capacity: Marriage) [2005] EWHC (Fam) 2942.) Here, the terms ‘incompetent adult’ and ‘vulnerable adult’ seem to be used to connote the same thing.

Secondly, Munby J said: “Consistently with this view of the jurisdiction … there is no doubt that the [High] Court has jurisdiction to grant whatever relief in declaratory form is necessary to safeguard and promote the vulnerable adult’s welfare and interests” (at [13]; emphasis added). Thirdly, Munby J said that the inherent jurisdiction would even permit the court to order a person’s detention. It is, however, the range of people he thought might be subject to such an order that is of most interest for present purposes. He said: “It is in my judgment quite clear that a judge exercising the inherent jurisdiction of the court (whether the inherent jurisdiction of the court with respect to children or the inherent jurisdiction with respect to incapacitated or vulnerable adults) has the power to direct that the child or adult in question shall be placed at and remain in a specified institution such as, for example, a hospital, residential unit, care home or secure unit” (at [16]; emphasis added).

These extracts from the judgment of Munby J are slightly odd, because he also cited several passages that say no more than that the inherent jurisdiction is available in the case of incapable people. For example, he cited his own judgment as follows: “It is elementary that the court exercises its powers by reference to the incompetent adult’s best interests … The particular form of order will, naturally, depend upon the particular circumstances of the case” (at [13]; emphasis added). (See: Re SA (Vulnerable Adult with Capacity: Marriage) [2005] EWHC (Fam) 2942.) Munby J also cited Dame Elizabeth Butler-Sloss, who had said of the inherent jurisdiction: “It is a flexible remedy and adaptable to ensure the protection of a person who is under a disability … Until there is legislation passed which will protect and oversee the welfare of those under a permanent disability the courts have a duty to continue … to use the common law as the great safety net to fill gaps where it is clearly necessary to do so” (at [14]; emphasis added). (See: Re Local Authority (Inquiry: Restraint on Publication) [2003] EWHC (Fam) 2746.)

It is not clear precisely what Munby J means by a ‘vulnerable’ person. What the Government means by that term is, however, clear. In its No Secrets guidance, it envisages a person who is or may be, inter alia: [1] in need of community care services by reason of mental or other disability, age or illness; and [2] unable to take care of himself or herself, or unable to protect himself or herself against significant harm or serious exploitation. (Home Office and Department of Health, 2000, No secrets: Guidance on developing and implementing multi-agency policies and procedures to protect vulnerable adults from abuse, paragraph 2.3.) In fact, this test was imported from the Government’s 1997 Green Paper, and, even more remotely, from the Law Commission’s own report on mental incapacity. (Lord Chancellor’s Department, 1997, Who Decides? Making decisions on behalf of mentally incapacitated adults, Cm 3803, paragraph 8.7; Law Commission, 1995, Report on Mental Incapacity, Law Com no 231, paragraph 9.6.)

We don't know whether Munby J’s definition is the same as the one in No Secrets. It seems abundantly clear, however, that he does not regard vulnerability as the same as incapacity, and therefore: [1] that vulnerable people will not fall within MCA 2005 just because they are vulnerable; but [2] that vulnerable people will enjoy the protection of the High Court via the inherent jurisdiction, even though, in the case of incapable people, that protection now falls to be provided under MCA 2005 and exclusively by the Court of Protection.

This state-of-affairs might, however, be somewhat problematic. The Law Commission took pains to stress that measures that might be used to safeguard incapable people should only be used with consent in the case of vulnerable people that retained capacity. (Law Commission, 1995, op cit, para 9.12.)

The possibility that the High Court might offer a remedy to vulnerable people who remain capable – and, indeed, that the Mental Capacity Act might be used to protect those who are both vulnerable and incapable – is considered in more detail in a chapter I have written for a new book. That book, entitled Good Practice in the Law and Safeguarding Adults, is edited by Jacki Pritchard and published by Jessica Kingsley Publishers. It also covers such issues as adult protection practice and procedures; crime and vulnerable adults; financial abuse and the question of capacity; the role of CSCI; and confidentiality and information sharing. More information about the book may be found here.