Business Law

Calvin had been an avid coin collector for many years, and the most valuable coin in his collection was an uncirculated, mint condition, 1943 Lincoln penny made of copper (most pennies made during World War II were made of zinc because copper was needed in the war effort). That penny had a value of between $60,000 and $95,000.

In August of 2017, Calvin had a serious stroke that left him unable to speak or walk, but his doctor assured his family that Calvin would recover over time with intensive therapy.

Calvin was a widower and did not have any children, but he had several nephews who visited him from time to time as he recovered. None of the nephews had any real interest in Calvin’s coin collection. One of Calvin’s nephews, Billy, who visited Calvin more often than the other nephews, sometimes listened to Calvin talk (talking was a part of Calvin’s therapy) about his mounting medical bills and his coin collection, but Billy never showed much interest in the medical bills or the coin collection.

In October, as Calvin’s recovery progressed slowly, Billy visited Calvin and told Calvin that he had been reading about coin collecting, and he realized that Calvin’s collection, especially the 1943 Lincoln copper penny, was valuable, and Billy suggested that Calvin should consider selling the 1943 Lincoln copper penny and use the proceeds to pay his medical bills. Calvin resisted the idea at first, but Billy continued to urge Calvin to sell the penny so that he would not have to worry about the medical bills. Finally, when Billy told Calvin that he would arrange the sale of the penny for a commission of just 5% of the sale price of the penny, Calvin began to think that selling the coin might be a good idea. He was still a little confused about how the sale would work and what Billy would do to make sure that the penny would be sold for the best price. Calvin told Billy that he thought that the penny was worth almost $100,000, but Billy assured Calvin that the market had changed recently, and that the penny was now worth $40,000 to $45,000. Eventually, Calvin allowed Billy to sell the penny for the best price he could get and to take a 5% commission for arranging the sale of the penny. Billy then sold the penny to a friend for $40,000, took his 5% commission, and paid the remainder of the sale price to Calvin.

A few months later, as Calvin continued to recover, he read a story in a coin collecting magazine about how an uncirculated, mint condition, 1943 Lincoln penny made of copper had just sold at auction for more than $100,000, and Calvin began to wonder if Billy had taken advantage of him. Calvin consulted a lawyer and asked the two questions below.

1. Exhibit 11-1 (on page 239 of the textbook) explains the relevant considerations for mental incapacity. Based on the facts presented, did Calvin have the mental capacity to enter into the contract when he agreed to let Billy sell the penny?
2. Page 264 of the textbook poses four questions to analyze when determining undue influence. Based on the facts presented, did Billy exert undue influence over Calvin to cause Calvin to enter into the contract that allowed Billy to sell the penny?

Your journal entry must be at least two pages in length and include at least two outside sources, one source must be from the CSU Library. Be sure to use APA formatting for all citations and references.

11-1
Intoxicated Persons
For purposes of determining capacity, intoxicated persons include those under the influence of
alcohol or drugs. There is some variation among states in the treatment of the capacity of
intoxicated persons to enter into contracts. As a general rule, most states follow the
Restatement of Contracts, Section 16, which provides that contracts of an intoxicated person
are voidable by the intoxicated person if the other party had reason to know that because of the
intoxicated person’s condition, that person was unable to understand the nature and
consequences of the transaction or was unable to act in a reasonable manner in relation to the
transaction. If the intoxication merely causes someone to exercise poor judgment, the person’s
capacity to enter into a legally binding contract is not affected.
Likewise, if one party has no way of knowing that the other was intoxicated at the time the
agreement was made, and the agreement is a fair one, it will be upheld by most courts. For
example, Lisa emails Rob and offers to buy his antique car from him for $8,000. Rob has just
broken up with his girlfriend and has been drinking nonstop all day. He gets the email message
and immediately responds in the affirmative. Lisa had no way of knowing Rob was intoxicated,
so they would have a valid contract in most states.
Once sober, the intoxicant has the ability either to ratify or disaffirm the contract. Because public
policy does not favor intoxication, the courts tend to be unsympathetic to intoxicants and will
fairly liberally interpret behavior that seems like ratification as ratifying the contract. If Jim
became intoxicated at a bar one evening, and Randi took advantage of the situation by getting
him to sign a contract to sell her his 2004 SUV for $8,000, any act Jim takes consistent with
ratification after becoming sober will result in a binding contract. If Randi appears at his house
the next morning with the cash, shows him the contract drafted on a napkin that he signed, and
asks for the keys and the title, then by giving her the keys and saying, “I knew I shouldn’t have
drunk that much,” Jim has entered into a binding contract.
If the contract is disaffirmed on the basis of intoxication, each party to the contract must return
the other to the condition she or he was in at the time the contract was entered into. Also, as
with contracts of persons who have limited capacity, a contract of an intoxicated person for
necessaries will be enforced for the reasonable value of the necessaries.
Exhibit 11-1
The Three I’s of Incapacity: General Rules
TYPE OF INCAPACITY
CONSIDERATIONS
IF THE ANSWER IS YES, THE GENERAL RULE IS:
Infancy
Is the person under the age of majority (a minor)?
The contract is voidable.
Insanity
Is the person suffering from mental deficiencies that prevent him from understanding his legal
obligations under the contract he is entering into?
The contract is voidable.
Does the person’s mental deficiency simply impair her judgment about the desirability of the
contract but not prohibit her from understanding her obligations under it?
The contract is valid.
Is the person adjudicated insane?
The contract is void.
Intoxication
Is the sober party aware that the intoxicated person is so impaired that he is unable to
understand his legal obligations under the contract he is entering into?
The contract is voidable.
Is the intoxication such that it impairs only the intoxicated person’s judgment but not her
understanding of her contractual obligations?
The contract is valid.
Has the intoxicated person been adjudicated a habitual drunkard?
The contract is void.
page 240
4 Questions
If someone believes undue influence has occurred, asking the following questions can help
establish whether there was undue influence:
1. Was the dominant party rushing the other party to consent?
2. Did the dominant party gain undue enrichment from the agreement?
3. Was the non-dominant party isolated from other advisers at the time of the agreement?
4. Is the contract unreasonable because it overwhelmingly benefits the dominant party?
Journal of Social Welfare and Family Law
25(4) 2003: 341–353
Adults, mental illness and
incapacity: convergence and
overlap in legal regulation
Peter Bartlett
School of Law, University of Nottingham
Abstract: While not entirely congruent, there will be substantial overlap
between the classes of individuals governed by the proposed Mental Incapacity and Mental Health Acts, and by the court’s inherent jurisdiction. This
paper argues that the mental health proposals are procedurally strong but
substantively weak, while the incapacity reforms are, largely, the reverse. For
individuals who may be subject to either legal régime, therefore, the safeguards of one statute may be avoided by resort to the other. Lying across both
reforms is the court’s inherent jurisdiction. It remains to be seen whether or
how the scope of this jurisdiction will be developed in the event that the
legislative reforms are passed.
Keywords: mental health, mental incapacity, inherent jurisdiction of court
Introduction
If the anticipated reforms to incapacity law and mental health law proceed as
planned, adults will potentially be subject to two, or perhaps three, régimes of
legal control. In very broad terms, the intent would seem to be that a new
Mental Health Act would govern those with mental disorders, on a set of
criteria based on their health or safety and the safety of the public. A proposed Mental Incapacity Act would allow decisions to be made in the best
interests of those lacking capacity. In the event that there remained any gap
in legislative provision, it would seem that, unless its jurisdiction is expressly
excluded by the new legislation, the inherent power of the court to make
decisions might continue to be available to fill that gap. While the overall
approach of the courts in the exercise of their inherent jurisdiction bears a
marked similarity to that of the mental incapacity bill, the proposed Act
establishes a variety of safeguards which may set bounds on the contexts in
which it may be available. The court has in the past, been prepared to use the
inherent jurisdiction in cases where deliberate safeguards precluded the application of statutory powers: see Re F (Mental Health Act: Guardianship)
[2000] 1 FLR 192, In Re TF (An Adult: Residence) [2000] 1 MHLR 120. It
cannot be assumed that the introduction of a new Mental Incapacity Act
would extinguish the inherent jurisdiction.
Journal of Social Welfare and Family Law
ISSN 0141-8033 print/ISSN 1469-9621 online © 2003 Taylor & Francis Ltd
http://www.tandf.co.uk/journals
DOI: 10.1080/0141803032000168355
342
Journal of Social Welfare and Family Law 25(4) 2003
As noted in the introduction to this special edition, the overlap between
the jurisdictions is not complete. Nonetheless, the overlap in target populations and substantive decisions governed is significant enough to warrant
consideration of the interaction of the jurisdictions.
Core legal thresholds and concepts
Each set of proposed reforms includes a fundamental criterion as a threshold
for the application of the Act. In the draft Mental Incapacity Act, this is the
requirement that the person be without capacity, as defined in clauses 1
and 2:
1 (1) For the purposes of this Act, a person lacks capacity in relation to a
matter if at the material time he is unable to make a decision for himself
in relation to the matter because of an impairment of or a disturbance in
the functioning of the mind or brain.
(2) It does not matter whether the impairment or disturbance is permanent
or temporary.
2 (1) For the purposes of section 1, a person is unable to make a decision for
himself if
(a) he is unable to understand the information relevant to the decision
(b) he is unable to retain the information relevant to the decision
(c) he is unable to use the information relevant to the decision as part of
the process of making the decision
(d) he is unable to communicate the decision (whether by talking, using
sign language or any other means).
(2) A person is not to be treated as unable to make a decision merely
because he makes an unwise decision.
Thus far, clause 2 reflects the common law as it has developed in the context
of capacity to consent to treatment.1 This is the articulation of incapacity that
has been particularly influential in the development of the court’s inherent
jurisdiction. Indeed, the courts occasionally refer expressly to the Law
Commission report in setting the common law test of incapacity, suggesting
congruence to this degree between the two jurisdictions: see e.g. R (Wilkinson) v. RMO Broadmoor and others, [2001] EWCA Civ 1545 at para. 66 per
Hale LJ); Re MB (Medical Treatment) [1997] 2 FLR 426. Continuing this
consistency, clause 3 re-iterates the common law presumption of capacity.
Further sub-clauses to clause 2 state that all reasonable attempts must be
made to communicate with an individual prior to a finding of incapacity, that
the period of retention of information required is short and that relevant information includes foreseeable consequences of deciding either way or of failing
to decide. While it may well be the case that a court would import these
conditions into the threshold for the application of its inherent jurisdiction,
they are less obviously part of the common law tradition. As such, the
congruence in populations affected may not be complete.
The reference to impairment of or disturbance in the functioning of the
mind or brain in clause 1 is drawn from the Law Commission report, where
Adults, mental illness and incapacity
343
it was intended to introduce a diagnostic threshold to the definition of incapacity. There is, again, no express requirement for such a threshold in the
court’s inherent jurisdiction, although the terms of the diagnostic threshold
are sufficiently broad that it is difficult to imagine an incapacitated person
failing to satisfy them. The wording deliberately does not reflect the definition of mental disorder in the Mental Health Act 1983, which, rightly or
wrongly, was perceived in some quarters as referring only to psychiatric
disorders. The intent of the Law Commission was, instead, that it would
include all disorders resulting in impaired mental functioning (Law Commission, 1995: para. 3: 8–12). In this, it bears a striking resemblance to the
definition of mental disorder in clause 2(6) of the draft Mental Health Bill:
2(6) “Mental disorder” means any disability or disorder of mind or brain
which results in an impairment or disturbance of mental functioning; and
“mentally disordered” is to be read accordingly.
This proposed definition is somewhat broader than that contained in the
Mental Health Act 1983 and has come in for criticism in that regard. It does
align the diagnostic threshold with that in the proposed Mental Incapacity
Act. The incapacity provisions would, in addition, require an inability to
make decisions; so, not all persons with a mental disorder under the mental
health reforms would be governed by the incapacity law, but all persons with
a mental incapacity would meet the threshold of mental disorder under the
mental health reforms.
Beyond this, there is a divergence of the criteria under the two proposed
reforms. The mental incapacity framework relies on determination of
decision-making ability. The criteria of the draft Mental Health Act lists the
following, rather verbose, criteria for the imposition of compulsory powers:
6 (1) In this Part, references to the relevant conditions are to the following
conditions.
(2) The first condition is that the patient is suffering from a mental disorder.
(3) The second condition is that the mental disorder is of such a nature or
degree as to warrant the provision of medical treatment to him.
(4) The third condition is –
(a) in the case of a patient who is at substantial risk of causing serious
harm to other persons, that it is necessary for the protection of
those persons that medical treatment be provided to him.
(b) in any other case, that
(i) it is necessary for the health or safety of the patient or for the
protection of other persons that medical treatment be provided
to him, and
(ii) that treatment cannot be provided to him unless he is subject to
the provisions of this Act.
(5) The fourth condition is that appropriate medical treatment is available
in the patient’s case.
Consistent with much of the modern thinking about the regulation of mental
health, the Richardson Committee had proposed that capacity be afforded
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Journal of Social Welfare and Family Law 25(4) 2003
a larger place in the criteria for the imposition of mandatory powers. That
would have brought the mental health legislation into closer conformity with
the draft incapacity bill. This approach was not adopted by the government,
which instead seemed to take a view that minimized the relevance of consent
to treatment. The relevant government minister in 1998, Paul Boatang, made
the point particularly clearly:
But if there is a responsibility on statutory authorities to ensure the delivery of
quality services to patients through the application of agreed individual care
plans, so there is also, increasingly, a responsibility on individual patients to
comply with their programmes of care. Non compliance can no longer be
an option when appropriate care in appropriate settings is in place. I have
made it clear to the field that this is not negotiable. [Speech on creation of
Richardson Committee, 22 October 1998]
(Richardson, 1999: 140, at para. 11)
The draft criteria above reflect that approach. The incapacity proposals
include provisions for Lasting Powers of Attorney, documents that would
allow an individual to select a substitute to make financial and personal
decisions, including health care decisions, for them in a period of subsequent
incapacity. These would be subject to advance treatment decisions, which
would allow patients to refuse treatment prospectively, in anticipation of
incapacity. Doctors and holders of powers of attorney for personal care
would continue to be bound by those pre-expressed wishes regarding treatment and other personal care decisions. The mental health provisions would
allow treatment and some personal care decisions to be imposed on the
individual without consent. The use of the mental health provisions would
thus provide a way around the pre-planning countenanced by the Mental
Incapacity Act.
The Law Commission countenanced the use of the Mental Health Act
1983 in a similar fashion (Law Commission, 1995: para. 2.2). However,
what is startling about the four conditions in the proposed mental health bill
is the low threshold for the imposition of mandatory powers. To paraphrase
the minimum threshold: if a patient is affected by a mental disorder warranting treatment, then appropriate treatment may be enforced over the objections of the patient if it would benefit the patient’s health. As we have seen,
the definition of mental disorder under the mental health reforms is such that
all persons lacking mental capacity will meet this criterion. In the rather
frequent case that the mental disorder affecting a person lacking capacity
warrants treatment, it would seem that the Mental Health Act criteria would
be available. It is difficult to see that these criteria pose a sufficiently robust
standard to warrant the circumvention of the pre-planning mechanisms
anticipated in the incapacity legislation.
The scope of this difficulty should be noted. The proposed mental health
criteria reflect, on their face, a concern with treatment provision: the Act
would not be available to control persons where no appropriate medical treatment was available. However, treatment is given an exceptionally broad
definition in the draft mental health bill:
Adults, mental illness and incapacity
345
2 (5) “Medical treatment” means treatment for mental disorder provided
under the supervision of an approved clinician; and for this purpose
“treatment” includes –
(a) nursing
(b) care
(c) habilitation (including education, and training in work, social and
independent living skills) and
(d) rehabilitation (read in accordance with paragraph (c)).
An ‘approved clinician’ would be defined by regulation, but the explanatory
notes suggest that it would in practice be a consultant psychiatrist or
psychologist (MHB, para. 11).
Treatment thus extends well beyond chemical therapies, into the realm
of community programmes and living. It might well include, for example,
admission to a nursing home, provision of meals on wheels, attendance at a
day centre, or selection of carers. Depending on how broadly ‘care’ is interpreted, it is at least arguable that some somatic medical care may be within
its ambit. There is no suggestion that the treatment needs to cure or even to
substantially ameliorate the underlying mental disorder.2 The requirement
is, instead, merely that the treatment be ‘appropriate’. The result suggests
a considerable incursion into the decisions countenanced by the incapacity
proposals. When a doctor is prepared to include these factors in a care plan
under the mental health reforms, it would seem that the more nuanced
approach of the incapacity reforms could be circumvented.
Clause 27
Clause 27 of the mental incapacity bill appears to be intended to serve as the
foundation for the relationship between the incapacity reforms and mental
health law. Unlike the draft mental health legislation, the mental incapacity
bill is generally well drafted, but this clause is an exception. It reads as
follows:
27 (1) Nothing in this Act authorises anyone –
(a) to give a patient a medical treatment for mental disorder, or
(b) to consent to a patient being given a medical treatment for mental
disorder
if the giving of the treatment to the patient is regulated by Part 4 of the
Mental Health Act.
(2) “The Mental Health Act” means the Mental Health Act 1983 (c. 20);
and “medical treatment”, “mental disorder” and “patient” have the
same meaning as in that Act.
It should first be noted that this clause governs treatment only: it does
not purport to govern admission to psychiatric facilities. Admission and
treatment are quite separate decisions under existing law and, as capacity is
decision-specific, it is quite conceivable that one would have capacity for one
of these but not the other.
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Journal of Social Welfare and Family Law 25(4) 2003
Part 4 of the Mental Health Act 1983 effectively does two things. Section
57 precludes specified treatments, most importantly psychosurgery, from
being performed without the patient’s competent consent. These treatments
therefore cannot be performed on patients lacking the capacity to consent to
them. Clause 27 would certainly ensure that this rule remained. Part 4 of the
1983 Act also places some restrictions on treatment of persons involuntarily
confined in psychiatric facilities. If treatment continues beyond three months,
or if electro-convulsive therapy is to be provided at any time, such treatment
may be provided only upon the competent consent of the patient, or with the
approval of a second, specially authorized, doctor. Certainly, as with the
section 57 treatments, the clause would have the effect of precluding substitute consent to these treatments as long as the patient had involuntary
status. However, there is nothing in the section which would preclude the
patient being transferred to informal status, where these treatments would not
be regulated under part 4 of the 1983 Act. If the patient were nonetheless
prepared to remain in the facility, or if the patient lacked capacity to make
that decision (in which case, under existing law, the best legal view seems to
be that reasonable force could be used to detain them in the facility),3 clause
27 would not apply, and the safeguards of part 4 could be avoided. The
theoretical justification for such a loophole is not obvious.
All this refers to the Mental Health Act 1983. The explanatory notes to
the draft incapacity bill provide no indication as to how clause 27 would be
revised in the event that the mental health bill or something similar to it is
passed. Psychosurgery and electro-convulsive therapy would remain subject
to restrictions (MHB, cls 112–116, 118–119) and presumably the incapacity
legislation would preclude substitute consents for those treatments. The
mental incapacity reforms would preclude force being used on a resisting
patient, or to restrict an individual’s liberty, so the most obvious excess of the
wording as it applies to the existing law would be curtailed. Such a limitation
is reflected regarding treatment in clause 121 of the draft mental health bill,
which would require compulsory powers to be used if a patient lacking
capacity would resist the proposed treatment.
However, the possibility and practical advantages of moving a compliant
patient to informal status in other cases would remain, as formalities relating
to routine hearings and formalized tribunal consideration of care plans would
be avoided. The mental health bill would provide some considerably less
stringent safeguards for long-term informal patients without capacity, but
these would be sufficiently less intrusive as to provide a potential incentive to
change these patients to informal status.
‘Informal’ legal regulation
Apart from a few provisions requiring consent for particularly intrusive treatments such as psychosurgery (MHB, cls 112–116), the draft mental health
bill does not offer a legal framework for competent informal patients. As
under the Mental Health Act 1983, informal admission and the treatment of
persons informally admitted are generally outside the scope of the bill. The
procedural delineation surrounding the use of formal powers in the bill is
Adults, mental illness and incapacity
347
clear. The draft bill provides a set of processes that must be followed prior to
their invocation. The use of the powers provided under the draft bill must be
documented and, as under the Mental Health Act 1983, it would be clear
when the authority of the Act commenced. Review before an administrative
tribunal is perceived as a common outcome of the commencement of these
formal powers and such review would be mandatory for the formal powers to
continue beyond twenty-eight days.
The proposed Mental Incapacity Act would lack this clear procedural line
demarcating the point where the statute would be applied. Its primary ethos is
intended to be supportive, not coercive. The overwhelming bulk of decisions
would be expected to be taken under the ‘general authority to act’, an authority which in most cases allows anyone to make a decision for the benefit of a
person lacking capacity. There is no general requirement that these decisions
be documented, nor need the individual lacking capacity be informed of the
decision, let alone any government or statutory body. The use of this power
is meant to be informal. To be realistic, given the practical dynamics of
simple care decisions and the limited knowledge of law enjoyed by most lay
people, decision-makers may well be relying on the general authority without
knowing it themselves.
The informal administration of incompetent persons lacking capacity
under the current mental health framework operates in two ways. First, the
existing law allows ‘informal’ admission of patients by their guardians, even
when the patient objects: R v. Hallstrom (No 2) [1986] 2 All ER 306, at 312.
The criteria for Mental Health Act guardianship is not specifically related
to capacity and therefore this route may enforce ‘informal’ admission on
persons with guardians, whether or not they have capacity. However, the
powers of the guardian do not extend to consent to treatment, so a competent
patient may still not be treated without either consent or the use of compulsory powers. As the draft mental health bill would abolish guardianship in its
current form, this admission route would be closed.
Alternatively, a person lacking capacity may be admitted and treated in
the mental health system by application of the standard law regarding
incapacity. Currently, this means that consent is not required, so long as what
is done is according to a vaguely defined best interest test, and necessary
force may be used to enforce the admission or treatment. The draft mental
health bill would limit this, somewhat, by precluding treatment (not admission) that a patient would resist (MHB, cl. 121(3); see above). Such patients
could only be treated under the compulsory process. Some monitoring of care
plans would also be introduced. The regulation of informal incapacitated
patients would nonetheless remain primarily in the realm of incapacity law.
However, the applicable mental incapacity law would be much more
robust. As now, any decision made regarding a person lacking capacity
would have to be made in the person’s best interest (MIB, cl. 4(1)), but this
would now be defined in clause 4(2) of the bill:
4 (2) In deciding for the purposes of this Act what is in a person’s best
interests, regard must be had to –
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Journal of Social Welfare and Family Law 25(4) 2003
(a) whether he is likely to have capacity in relation to the matter in
question in the future;
(b) the need to permit and encourage him to participate, or to improve
his ability to participate, as fully as possible in any act done for and
any decision affecting him –
(c) so far as ascertainable
(i) his past and present wishes and feelings, and
(ii) the factors which he would consider if he were able to do so;
(d) if it is practicable and appropriate to consult them, the views of –
(i) any person named by him as someone to be consulted on the
matter in question or on matters of that kind,
(ii) any person engaged in caring for him or interested in his welfare,
(iii) any donee of a lasting power of attorney granted by him, and
(iv) any deputy appointed for him by the court,
as to his past and present wishes and feelings and the factors he would
consider if able to do so;
(e) whether the purpose for which any action or decision is needed can
be as effectively achieved in a way less restrictive of his freedom of
action.
This wording is substantially similar to that proposed by the Law Commission. It did not intend that this would be a complete list of criteria but,
instead, suggests that these are criteria that will always be relevant to making
decisions on behalf of incapacitated people (Law Commission, 1995: para.
3.26). Notwithstanding the language used, the result is a move away from a
traditional ‘best interests’ test, where the decision is based primarily or exclusively on criteria considered important by the decision-maker, to a test which
requires the past and present views of the person lacking capacity to be considered, as well as the need to buttress the autonomy of that individual. The
criteria are thus a move away from a simple ‘doctor (or carer) knows best’ test
and psychiatric treatment or admission to psychiatric facilities in violation of
this test, at least prima facie, could not be justified by the incapacity legislation. While the current and previous wishes of the person would thus not be
determinative of the decision as to whether to impose psychiatric admission
or treatment ‘informally’ under the incapacity proposals, they would be a
significant factor which a decision-maker would be required to take into
account.
There are further limitations on the general authority provided by the
proposed Mental Incapacity Act. Decisions made under the general authority
may not be inconsistent with decisions made by court-appointed decisionmakers (‘deputies’) or donees of lasting powers of attorney (‘attorneys’): MIB,
cl. 7(2). It is, sadly, not necessarily clear that the individual exercising the
general authority would always know of such managers or attorneys, or of
their decisions. Similarly, the general authority is expressly subject to
advance decisions to refuse treatment: MIB, cl. 7(5). The general authority
does not allow force to be used or threatened in order to secure the doing of
anything which the person lacking capacity resists (MIB, cl. 7(1)(a)). Thus a
decision to admit an individual to a facility might be legal, but there would
be no practical way to get the person to the facility without moving beyond
Adults, mental illness and incapacity
349
the general authority and obtaining a court order. Similarly, treatment to
which the patient objected could not be given. In practice, when possible, the
more likely administrative response would be to bring the individual under
the jurisdiction of mental health law, as discussed above.
Further, the general authority does not authorize anyone ‘to restrict Ps
(i.e. the person lacking capacity) liberty of movement whether or not he
resists’ (MIB, cl. 7(1)(b)). The result may be a quite limited protection to
persons lacking capacity. The case of R v. Bournewood ex p L [1998] 3 WLR
107, decided after the publication of the Law Commission draft, suggests
a marked reluctance on the part of the House of Lords to find that a ‘confinement’ has occurred. In that case, the plaintiff, L, lacked capacity. He was
informally admitted over the objection of his carers to a psychiatric ward.
While the ward was unlocked, the evidence was that his doctor would have
sectioned him had he attempted to leave. Overruling a unanimous Court of
Appeal, the House of Lords held that there was no confinement present. The
decision is not convincing (see Bartlett, 2003), and a decision of the European
Court of Human Rights is pending. Nonetheless, there is a real possibility
that restriction of liberty of a person lacking capacity may only be perceived
by the courts as occurring in the event that admission is enforced on an
actively objecting individual. The wording of the clause is clearly intended to
be broader, but it is not obvious quite what that means after Bournewood.
On questions of treatment, the draft mental health bill is somewhat more
robust. Patients unable to consent to treatment and who have previously
indicated that they do not want the proposed treatment, or would resist the
treatment if given, or are at substantial risk of committing suicide or causing
serious harm to others, may be treated only following the imposition of
mandatory powers (MHB, cl. 121). Even if the patient were not objecting to
treatment, special provisions in the draft mental health bill would apply if the
individual were over 16, suffering from mental disorder of a nature or degree
warranting medical treatment and where, in addition:
(a) it is necessary for the patient to be resident in hospital for the purposes
of treatment provision, and that this is likely to continue for more than
28 days; and
(b) the patient is incapable of consenting to treatment, and that is likely to
continue for more than 28 days. (MHB, cl. 125)
In that event, a ‘nominated person’ would be appointed for the patient, and
both the patient and the nominated person would be made aware of the
services of patient advocates. The nominated person must be consulted as
treatment progresses and, in the event that he or she is aware that proposed
treatment would have been refused by the patient if capable, is obliged to
inform the clinical supervisor and the treatment may not be used except in
cases of urgency. Within 28 days, the clinical supervisor must prepare a care
plan, which is subject to approval by an independent medical advisor. The
plan must be reviewed at least annually and the nominated person may insist
on one more review each year. If there are disputes between the nominated
person and the clinical supervisor as a result of such reviews, the matter may
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Journal of Social Welfare and Family Law 25(4) 2003
be considered by a review tribunal (MHB, cl. 122–136). While annual
reviews are hardly an onerous burden, the fact that they are routine makes
them procedurally more robust than anything the incapacity proposals offer.
The incapacity proposals would, instead, allow for (not require as a matter
of routine) a court application regarding the care of the person lacking
capacity. This would be to a new Court of Protection, a new superior court at
the trial court level, and the court would have extensive jurisdiction (MIB, cls
34–37). As noted above, clause 27 of the incapacity bill would preclude the
court from considering treatments regulated by part IV of the 1983 Act and
a comparable set of sections would presumably be included to reflect the
mental health reforms. However, outside specifically prescribed treatments,
the court would continue to have jurisdiction, including over the enforcement
of ‘informal’ psychiatric treatments and psychiatric admissions, and there is
no provision limiting the court’s power to allow force to be used in enforcement of its orders. These would be limited by the mental health reforms in the
case of dangerous patients or those who would resist treatment, who could
only be treated by mandatory powers (MHB, cl. 121).
The integration of the two sets of processes does produce an anomaly.
There is nothing obvious to prevent a health professional who is not content
with a judicial finding under the Incapacity Act on treatment, for example,
from resorting to the procedures for compulsion under the mental health bill.
Under clause 27 of the incapacity bill, this would deprive the court of jurisdiction. The appeals procedures do not work to the advantage of a sensible
resolution here. Under the mental health reforms, complaints would be heard
by a review tribunal, with appeals to an appellate review tribunal followed
by appeals to the Court of Appeal. The Court of Protection is bypassed
completely, and it is only at the Court of Appeal level that mental health and
mental incapacity matters relating to the same individual or treatment could
be considered at the same time.
The inherent jurisdiction of the court
This is the wild card in the incapacity landscape. In recent years, in the
absence of mental incapacity legislation, the court has been developing its
own jurisdiction to supervise the lives of persons lacking capacity. The development began with the case of Re F (Mental Patient: Sterilisation) [1989] 2
All ER 545, where the House of Lords held that where a patient lacked
capacity to consent to treatment, the treating physician could provide the
treatment if it was in the patient’s best interests. In the event of doubt, the
physician could apply to the court for guidance as to the best interests of
the patient. In Re S (Hospital Patient: Court’s Jurisdiction) [1995] 3 All ER
290, this role was expanded to include not merely guidance to potential
tortfeasors as to whether a tort was about to be committed (the F case) but
also the appointment of a substitute decision-maker, to determine in that case
where the individual would live. Most recently, in the case of TF, the Court of
Appeal has taken an even more expansive view. In the view of Butler-Sloss
P., the first question was whether ‘the present facts demonstrate a situation
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351
in which the doctrine of necessity might arise, that is to say a serious justiciable issue that requires resolution in the best interests of an adult without the
mental capacity to decide for herself?’ (TF, para. 23) Her Ladyship then
holds that ‘any genuine question as to what the best interests of a patient
require or justify’ is justiciable. (TF, para. 24) The result is that the court
would appear to be claiming jurisdiction to make such decisions as may be
required in the best interests of a person lacking capacity. The court appears
to view this as an independent, ‘inherent’ jurisdiction, separate from the
previous case law, which placed decisions in the context of other branches
of law, usually tort or contract. It remains early days in the life of this new
jurisdiction. The TF case was on a preliminary motion and there is little
experience of how the jurisdiction will be used (and enforced) in practice.
However, the language of the court does suggest a broad remit for its
new-found ‘inherent’ power.
The difficulty with this broad new jurisdiction, designed to plug the holes
of existing law, is that it may make the legislation of safeguards difficult. The
TF case itself may be instructive in this respect, because it shows the court
willing to use the inherent jurisdiction to introduce a set of controls similar
to guardianship in a factual situation where guardianship had been specifically precluded by safeguards contained in the Mental Health Act 1983 (see
Re F(MHA Guardianship) and Re TF para. 56). One might reasonably ask
what use a safeguard is, if the court can end it when it considers it appropriate
to do so. The incapacity reforms balance a variety of interests with considerable skill, acknowledging a considerable role for pre-planning for a
subsequent period of incapacity. Will the court feel obliged to honour
these arrangements under its inherent jurisdiction, or will it be prepared to
circumvent them in what it considers to be ‘appropriate’ cases?
It is at least arguable that there are some restrictions on the exercise of the
court’s discretion here. Article 5 of the ECHR, as interpreted in Winterwerp
v. The Netherlands, 2 EHRR 387, requires that decisions relating to the confinement of individuals must be made according to clearly defined criteria,
prescribed by law. It is difficult to see how a court operating on no predetermined criteria other than a vague ‘best interests’ test (not necessarily the
one in the proposed incapacity legislation) could satisfy this standard of
certainty. However, on this point, the Court of Appeal may not agree. In the
TF case, Sedley LJ seems to take the view that the inherent power may be
used to deprive individuals of liberty:
If returning to her mother is in truth a source of danger to (TF), I agree that,
absent any statutory inhibition, the court may, by declaring what is in T’s best
interests, sanction not only the provision of local authority accommodation
(which in any case needs no special permission) but the use of such moral or
physical restriction as may be needed to keep T there and out of harm’s way.
(TF, para. 47)
The use of such physical restriction must surely be a deprivation of liberty
within the meaning of article 5, yet Sedley LJ seems to see no difficulty in
the use of the inherent jurisdiction in this context. As the Court of Appeal will
also have pole position in the interpretation of article 5 rights under the
352
Journal of Social Welfare and Family Law 25(4) 2003
Human Rights Act, even confinement decisions must be viewed as potentially
within the inherent jurisdiction.
The jurisdiction has evolved in the absence of legislation on mental
incapacity and it is a matter of speculation how the court will react in the
event that such legislation is actually introduced onto the statute books. It is
nonetheless far from obvious that the jurisdiction will disappear if new legislation is passed. If it remains, and an ‘inherent’ jurisdiction may be remarkably difficult to get rid of, it is not clear how it will play off against the
legislative reforms.
Conclusion
The developments in law relating to incapacitated adults and mental health
have developed largely independently. This is unfortunate, since their respective jurisdictions contain significant elements of overlap. It is probably
unrealistic to hope that the substantive reforms can be collapsed into one
coherent bill – there are too many areas where issues diverge. However, it
could be asked whether some of the areas of overlap might be restricted or
better delineated. As things stand, the mental health reforms are procedurally
strong relative to the incapacity reforms, but substantively weak. The
incapacity reforms have better substantive protections, but no procedural
mechanisms to ensure compliance. The broad definitions of the mental health
reforms do allow significant intrusion into the jurisdiction of the proposed
incapacity law; in practice, significantly diminishing the application of the
substantive safeguards it would establish.
The issue here is not merely a drafting conflict, but is much more importantly a conflict in the essential philosophies of the two pieces of legislation.
The mental incapacity proposals allow for extraordinary informality in
substitute decision-making, and stem primarily from an ethos of support of
family and other similar carers and a regard to individual autonomy. They
were developed by the Law Commission under the former Conservative government, when funds for new social services were perceived to be extremely
limited and procedures therefore kept to a minimum. The mental health
reforms were developed in a culture with an existing tradition of administrative tribunals. However, these reforms grew in a political atmosphere of
apprehension, both flowing from the Fallon recommendations and a mediainspired moral panic. The result is an exceptionally intrusive substantive
legal framework.
Those philosophic and practical tensions lie at the base of the overlaps
between the two proposed sets of reforms. It is difficult to see that a coherent
package can be obtained without a much clearer acknowledgement of those
differences and some pragmatic rectification of the ways in which the reforms
can undercut each other.
Notes
1
Although not necessarily in other common law contexts. The ‘understand,
retain and use’ (or appreciate) language of treatment decisions is not a
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353
formula that appears in other common law tests. For a fuller discussion
of the common law tests, see Bartlett and Sandland, Mental Health Law:
Policy and Practice, 2nd edn., Oxford, 2003: ch. 10. The bill would
appear to take it that the common law will continue to apply to the
enforceability of individual contracts or wills, for example. If those areas
maintain their existing standards, this raises the statistically unlikely but
theoretically possible scenario that an individual would have capacity
under the bill, but not for the common law decision in question, or vice
versa. This may certainly create difficulties in the application of the Act,
although discussion of these problems is beyond the scope of this paper.
2
See, for example, the expansive interpretation provided in Tameside and
Glossop Acute Services Trust v. CH [1996] 1 FLR 762, where a caesarean
section operation was held to be treatment for mental disorder under the
Mental Health Act 1983.
3
This is by analogy with treatment provided to patients lacking capacity,
where reasonable force may be used: Norfolk and Norwich Healthcare
(NHS) Trust v. W [1996] 2 FLR 613; Re MB (Medical Treatment)
[1997] 2 FLR 426 at 439; R (On Application of Wilkinson) v. The RMO
Broadmoor Hospital and others [2001] EWCA Civ 1545, para. 64.
References
Bartlett, P. (2003) ‘Capacity and confinement: when is detention not “detention”’, in: K. Diesfeld and I. Freckelton (eds). Involuntary Detention and
Civil Commitment: International Perspectives London: Dartmouth.
Law Commission (England and Wales) (1995) Mental Incapacity (Law Com.
No. 231). London: Stationery Office.
Mental Health Act – Department of Health, Expert Committee (Richardson
Committee) (1999) Review of the Mental Health Act 1983. London:
Department of Health.
MHB – Department of Health (England and Wales) (2002) Draft Mental
Health Bill (Cm. 5538). London: Stationery Office.
MIB – Department of Constitutional Affairs (2003) Draft Mental Incapacity
Bill (Cm. 5859). London: Stationery Office.