5.9 Respondents on Issue Paper 18 were adamant that intervention in the affairs of persons with incapacity should be allowed on the basis of clear principles only.
Although the responses were, in many instances, apparently influenced by respondents’ different professional perspectives (i e medical, legal and social services) much emphasis was in general placed on constitutional principles.395 Of these, respondents generally believed that the rights to equality, autonomy and dignity are of particular significance. Other principles mentioned included the following:
♦ Intervention should take place only on the ground of objective evidence that the person concerned cannot manage his or her affairs. Some commentators (mostly from the medical fraternity) indicated that this should be medical evidence (i e evidence of a clinical assessment of competency or of a specific diagnosis) while others believed that the intervention should take place only after authorisation by a Court.396
♦ Intervention should take place only on application of the person concerned or someone on his or her behalf; where risks to the person concerned or others are involved; or where necessary.397
393 See Clause 4 of the draft Older Persons Bill (latest available draft dated 9 April 2003).
394 Clause 4(b). Other principles include the right to live safely and without fear of abuse; the right to be treated fairly and be valued independently of economic contribution; and the right to have access to employment, health welfare, transportation, social assistance an other support systems without regard to economic status (clause 4(a), (c) and (d)).
395 See the discussion on constitutional considerations in par 3.13-3.19 above.
396 This view broadly reflects preference for the principle of necessity, and for working with a presumption of competence.
397 Reflecting preference for the principle of necessity.
♦ Intervention should recognise the unique needs of every person with incapacity.398
♦ Intervention should empower persons with incapacity.399
♦ Intervention should be aimed at the protection of the person concerned.400
♦ Intervention should allow for the freedom of choice of the person concerned.401
5.10 The Commission agrees that intervention in the affairs of persons with incapacity can take place only on the basis of clear principles and that these should, in accordance with international and national trends be included in any new legislation on substitute decision-making.
5.11 Should it be a single principle, or a range of principles? It is clear from the background information supplied that a single principle (although it could have the advantage of providing clarity and simplicity) would not suffice. There is no single principle referred to in the relevant literature that clearly and fully encompasses all the situations in which persons with incapacity find themselves and in which intervention will be necessary. On the other hand, an extensive range of principles including principles specific to the issue to be legislated for as well as all the possibly applicable constitutional principles listed in Chapter 3 above, might be confusing. In accordance with the need for legal certainty and clarity the Commission’s aim would be to keep any legislation to be developed to govern substitute decision-making as clear and simple as possible.402 We therefore believe that such legislation should provide a clear test or guidelines for intervention in the affairs of persons with incapacity rather than a compilation of all the constitutional, social and other principles that could possibly apply to the situation. Although constitutional principles are of utmost importance, the concept of constitutional supremacy (as expressed in section 2 of the Constitution) in any event dictates that the rules of the Constitution are binding
398 Mainly reflecting preference for the principle of proportionality.
399 Reflecting preference for the principle of normalisation.
400 Broadly reflecting preference for the principle of least restrictive intervention.
401 Broadly reflecting preference for the substituted judgment principle.
402 See par 3.35 above for general pointers for reform.
on all branches of the government and have priority over any other rules made by the government.403 Any law or conduct that is not in accordance with the Constitution, either for procedural or substantive reasons, will therefore not have the force of law.404 In addition to this, section 8 of the Constitution provides that the Bill of Rights has supremacy over all forms of law and that it binds all branches of the state and, in certain circumstances, private individuals as well.
Moreover, respect for human rights is in any event also clearly reflected in the typical principles favoured by other jurisdictions. Against this background we prefer the examples of the English and Scottish Law Commissions that abided by a single principle which is defined in terms of a number of key concepts specific to the issue under legislation.
5.12 What should the governing principle be? In practice, different degrees of intervention will be appropriate in different circumstances, and there are bound to be differing opinions upon the right degree in any particular case.405 The right balance could possibly be found in the following comments on Issue Paper 18 by the Johannesburg Bar Council:
“Any legislative reform that is undertaken should have a its primary objective the protection of the interests of incapable adults, with the least possible intrusion upon the right of such persons in a manner which is cost effective, efficient, and practical, and which allows as much participation as possible by the incapable adult’s family members and close associates” (our emphasis).
This balance is to a large extent also reflected in the prominence given to certain principles in international instruments, reform in other jurisdictions, relevant South African legislation, and suggestions by respondents on Issue Paper 18 – which suggests that the following principles should possibly be included in our proposed legislation:
♦ Best interests (or a similar principle of beneficence). It is debatable whether “protection of the interests of incapable adults” in the view quoted above conveys or means something different than “best interests of
403 Sec 2 provides that the Constitution “is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled”.
404 Executive Council of the Western Cape Legislature v President of the Republic of South Africa 1995 (4) SA 877 (CC) par 62. See also De Waal et al 8.
405 Cf English Law Commission Consultation Paper 119 1991 109.
incapable adults”. We submit that criticism against the “best interests”
principle in the context of substitute decision-making as discussed in paragraph 3.18 above can be dealt with by clearly defining “best interests” in terms of constitutionally acceptable concepts for purposes of the proposed legislation. This approach will also deal with other criticism which has (albeit in the field of protection of children’s rights) been raised against the principle, namely that it fails to provide a determinate standard.406 The Commission wants to emphasise that its use of the
“best interest” principle is not meant to not convey any paternalistic or conservative notions. We propose that the base for intervention established in the proposed legislation should in particular embody the principles of protection of autonomy and self-determination. By identifying key concepts in terms of which “best interests” should be applied and interpreted, we submit that the right basis for intervention will be established.
♦ Least restrictive intervention (i e necessity and subsidiarity).
♦ Substituted judgment.
♦ Normalisation (i e maximum preservation of capacity).
♦ Proportionality.
♦ Consultation.
In response to the need that new measures should reflect the complexity of South African society, we would add to the above that intervention in the affairs of adults with incapacity should take into account the importance of maintaining the cultural environment, values and beliefs of that adult. South Africa is a multi- cultural society and people from different cultural backgrounds may employ different value bases in making decisions. They may also have, within their own traditions, ways of overcoming problems caused by impaired decision-making capacity. Recognition must be given to systems of support which operate in different ethnic or cultural communities.407 Although this sentiment is also contained more indirectly in the principle of subsidiarity, we believe that it should
406 Cf De Waal et al 416.
407 Cf the information in par 3.23-3.24 above on the African perspective regarding mental illness. Cf also the emphasis on this need in legislation developed by the Queensland Law Reform Commission (Report No 49 1996 38-40).
be given prominence by referring expressly to it. Finally, we do not propose that the presumption of competence should be included as one of the principles to govern intervention. The presumption of competence is already part of our law and merely restating it would be unnecessary and undesirable.408
5.13 PRELIMINARY RECOMMENDATION
The key principle to govern any intervention in the affairs of an adult with incapacity under or in pursuance of the proposed new legislation should be that any intervention must be in the best interests of the adult concerned. “Best interests” should be defined in terms of the following:
♦ Where an intervention is to be made, it must be the least restrictive option in relation to the freedom of the adult, consistent with the purpose of the intervention.
♦ No intervention should take place unless it is necessary taking into account the individual circumstances and the needs of the adult concerned. In deciding whether a measure is necessary, account should be taken of any less formal arrangements that might be made, and of any assistance which might be provided by family members or by others.
♦ Any person exercising functions under the new legislation in relation to an adult must, in so far as it is reasonable and practicable to do so, encourage the adult to participate, or improve his or her ability to participate, as fully as possible in anything done for and any decision affecting him or her.
♦ Any intervention must take into account the importance of maintaining the cultural environment, values and beliefs of the adult with incapacity.
♦ In determining if an intervention is to be made and, if so what intervention, account must be taken of -
* the ascertainable past and present wishes and feelings of the adult;
408 See par 4.11 on the presumption of competence.
* the views of other people whom it is appropriate and practical to consult including –
+ any person named by the adult as someone to be consulted;
+ any person engaged in or interested in the adult’s welfare (such as a spouse, partner in a permanent life partnership, relative, friend or carer);
+ any curator, manager or mentor appointed by the Court or the Master;
+ an agent appointed under an enduring power of attorney who has powers in respect of the proposed intervention;
+ any person whom the Court or the Master has directed to be consulted; and
+ any other person appearing to have an interest in the welfare of the adult concerned or in the proposed intervention.
The above principles should not exclude consideration of any relevant factor in a particular case.